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U.P. Sunni Central Board of Waqf and anr. Vs. Smt. Hasan Jehan Begum and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies;Property
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 50 of 1975
Judge
Reported inAIR1977All18
ActsUttar Pradesh Muslims Waqfs Act, 1960 - Sections 3(11), 19 and 55; Constitution of India - Article 226
AppellantU.P. Sunni Central Board of Waqf and anr.
RespondentSmt. Hasan Jehan Begum and anr.
Appellant AdvocateR.K. Garg, Adv.
Respondent AdvocateZ. Zalani, Adv.
DispositionAppeal partly allowed
Excerpt:
.....purposes. (ii) mutawalli of waqf - sections 19 and 55 of u. p. muslims waqfs act, 1960 - waqf board can dismiss mutawalli of 'waqf-alal-aulad' only after enquiry is completed. (iii) writ of prohibition - article 226 of constitution of india and section 55 of u. p. muslims waqfs act, 1960 - powers of board of waqf to remove mutawalli - no writ of prohibition valid in such case. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is..........that no one survives in theline of the descendants of the waqif. thewaqfs are registered with the waqfsboard under section 29 of the u. p. muslims waqfs act. 1960 (hereinafter referred as the waqfs act). the mutawalliyasought permission to sell certain items ofimmovable property. the permission wasgranted, but subsequently it was stayed.the mutawalliya, however, executed thesale-deeds. there was also question ofthe sale of mango crop of the grovescovered by two waqfs. according to themutawalliya, it was being sold forrs. 5,000 but the waqfs board taking theview that the property worth rs. 20.000was being sold for a paltry sum of rupees5,000 gave the direction that the sale willbe made by auction by an officer of theboard. the waqfs board also gave direction to the petitioner to submit.....
Judgment:

Hari Swarup, J.

1. This appeal has been filed by the U. P. Sunni Central Board of Waqfs (hereinafter referred as the Waqfs Board) against the judgment of the learned single Judge. The petitioner Smt. Hasan Jehan Begum had filed the writ petition challenging certain acts of the Waqfs Board. That petition was allowed by the learned single Judge partly.

2. The petitioner is the Mutawalliof the two Waqfs created in 1929 and1930 and subsequently alleged to be consolidated by another deed in 1943. Thewaqif purported to create Waqf-Alal-Aulad and also to dedicate the propertyunder the Muslim Law for purposes religious, pious and charitable. Under theWaqfs deed there is a specific amountallotted to those religious, pious and charitable purposes and the remainder has togo to the beneficiaries, that is to say, thedescendants of the waqif. Ultimately theentire property has to go for the benefitof religious, pious and charitable purposes provided that no one survives in theline of the descendants of the waqif. TheWaqfs are registered with the WaqfsBoard under Section 29 of the U. P. Muslims Waqfs Act. 1960 (hereinafter referred as the Waqfs Act). The Mutawalliyasought permission to sell certain items ofimmovable property. The permission wasgranted, but subsequently it was stayed.The Mutawalliya, however, executed thesale-deeds. There was also question ofthe sale of mango crop of the grovescovered by two Waqfs. According to theMutawalliya, it was being sold forRs. 5,000 but the Waqfs Board taking theview that the property worth Rs. 20.000was being sold for a paltry sum of Rupees5,000 gave the direction that the sale willbe made by auction by an Officer of theBoard. The Waqfs Board also gave direction to the petitioner to submit accountsof the entire waqf property and also proceeded to take action for the removal ofthe petitioner from the Mutawalliship ofthe property and directed her suspension.Aggrieved by these acts of the WaqfsBoard, the petitioner filed the writ petition.

2-A. It was urged before the learned single Judge that the Waqf being a Waqf-Alal-Aulad with only limited right of income reserved for religious, pious and charitable purposes could not be deemed to be a Waqf within the meaning of the Waqfs Act and the Waqfs Board could have no jurisdiction to give any direction to the Mutawalliya or to interfere with the management or proceed to remove her from Mutawalliship. The learned single Judge came, to the conclusion that the Waqf was a Waqf-Alal-Auled and it was not controllable by the Waqfs Act except to the extent of the fixed income which was to be utilised for purposes religious, pious and charitable. The learned single Judge accordingly quashed the Board's order regarding the sale of the mango crop by auction. The proceedings for removal and for rendition of accounts and also the notice initiating the proceedings for the removal of the Mutawalliya were also quashed. The order passed by the Waqfs Board suspending the Mutawalliya pending enquiry for removal was also quashed.

3. Learned counsel for the Waqfs Board has contended that the entire properties of the Waqfs were subject to the control by the Waqfs Board and the Waqfs in question were Waqfs within the meaning of Section 3 (11) of the Waqfs Act. On this basis it has been contended that the Board had the jurisdiction to supervise and control the management of the properties by the Mutawalliya and also to take action for her removal because she had made wrongful alienations of Waqf property and had rendered herself liable to be removed. On the same ground learned counsel contended that the Board had the jurisdiction and power to suspend the petitioner from the office of Mutawalliya by virtue of the powers contained in Sections 19 and 55 of the Waqfs Act. The contention of the respondent's learned counsel is that the Waqfs in question being waqfs-alal-aulad are not governed by the Waqfs Act.

For determining the powers of theBoard, it is necessary to determine if thepresent Waqfs are Waqfs within themeaning of Section 3 (11) of the WaqfsAct. Section 3 (11) provides:--

' 'waqf' means the permanent dedication or grant of any property for anypurpose recognized by the Muslim Lawor usage as religious, pious or charitable,and includes Waqfs-Alal-Aulad to theextent of which the property is dedicated or granted for any such purpose asaforesaid and waqf by user; and 'waqif'means the person who makes such dedication or griant'.

The definition of Waqf includes & Waqf-Alal-Aulad, but the entire properties donot come within the control of the Board.but only such properties as are dedicatedfor purposes religious, pious or charitable. The crucial point for determination, therefore, is whether the entire properties are dedicated for such purposes oronly to a limited extent is the dedication,The learned single Judge (took the view that, as a limit fixed income has to go for religious, pious and charitable purposes, only such property could be deemed to be covered by the definition as would be sufficient to yield such income. With great respect, we are unable to find ourselves in agreement with the view taken by the learned single Judge ,as to us it appears that the extent of property cannot be determined on the basis of the income. It is the dedication which has to be seen. If the entire property is dedicated for two purposes, namely, for secular purposes and for religious, pious or charitable purposes, then the entire property will be deemed to be dedicated for both purposes. Unless it is possible to determine the extent to which the property has been dedicated for religious, pious and charitable purposes, the entire property will have to be deemed to be dedicated to God and subject-matter of the Waqf. For excluding the property it should either be known or be determinable from the deed of waqf that a particular property or part thereof is not dedicated. Learned counsel for the petitioners-respondents contended that it is the income that is the criterion for determining the extent of dedication. But, we find that it is not the income which is contemplated by the definition of waqf but the property. The relevant words are 'to the extent to which the property is dedicated'. The income arises out of property and it can vary from time to time. It may be Larger than the amount fixed for the religious, pious or charitable purposes or may be less than that. It is also not possible to allocate property relative to the amount or to say that this amount of money must come from a particular portion or property out of the lot or from a particular proportion of that property. The entire property, which is the subject-matter of the waqf, is liable for meeting the purposes religious, pious or charitable. If the entire property, which is the subject-matter of the waqf, is liable for meeting the expenses, it cannot be said that the waqf or dedication is only to the extent of some undeterminable and unascertainable property out of the total property, which is the subject-matter of the Waqf. In our opinion, unless it is possible to determine the extent of the property out of the property which is the subject-matter of the waqf-alal-aulad meant for religious, pious or charitable purposes, the entire property will be the subject-matter of the waqf within the meaning of the Waqfs Act The question of determining the extent can practically arise only in a case in which there are a number of properties and some of them are earmarked for purposes recognised as religious, pious or charitable and others earmarked for the benefit of the waqif or his descendants. It may also arise in a case where a share in a property or a part of a property has been earmarked for the two purposes. In the present case neither of the two waqfs contain such a direction. The entire property has been dedicated for the purposes recognised as religious, pious and charitable. It may also be possible to say that the property, which has been dedicated for purposes religious, pious or charitable, is the entire extent of the property. The entire properties under the deeds will, therefore, be deemed to be waqf within the meaning of Section 3 (11) of the Waqfs Act.

4. If the two waqfs come within the definition of waqf in the Waqfs Act, then the entire Act will become applicable. The Mutawalliya of the waqfs will have the rights granted under the Act and the liabilities entailed by the Act. Section 19 of the Waqfs Act provides for the functions of the Board. Sub-section (1) runs as under:--

'The general superintendence of all waqfs to which this Act applies shall vest in the Board. The Board shall do all things reasonable or necessary to ensure that the waqfs under its superintendence are properly maintained, controlled and administered and the income thereof is duly appropriated to the purposes for which they were founded or for which they exist.'

The power of general superintendence will give the Board the power to see that the corpus or the property, which is the subject-matter of the waqf, is not mismanaged, wasted or wrongfully alienated. It will also give power to the Board to issue necessary direction in this respect to the Mutawalli of the Waqf, The Board could, therefore, on finding that the property was being sold for unreasonably low amount, issue direction to the Mutawalli to hold auction for sale to get a higher price. In the present case, however, the question about the validity of the direction issued in respect of the sale of the mango crop has ceased to be relevant because, in our opinion, the quashing of the direction will create more complications than solve the problems. It is an admitted fact that the mango crop was for 1974 and has already been sold by the Waqfs Board at an auction which fetched Rs. 20,000 as price. If we quash that order directing sale by auction, it may create, complications. Further, the Mutawalliya had stated that she could sell the property for Rs. 5.000 only, while the Board succeeded in selling it for Rs. 20,000 and this benefited even the petitioner. We accordingly do not think that it would be proper to maintain the order of the learned single Judge quashing the direction for selling the mango crop contained in Annexure 1 to the writ petition.

5. The other order issued by the Board had directed the Mutawalliya to furnish accounts for the entire property from the time she became the Mutawalli. This direction is contained in Annexure 4 to the writ petition. Section 50 provides for submission of accounts. Proviso to Section 50 runs as under:--

'Provided that in respect of a waqf-alal-aulad the statement of accounts required to be submitted by the mutawalli shall relate only to such portion of the income as is specified or set apart for religious or charitable purposes.' The Mutawalliya could in view of the proviso be directed to submit accounts only in relation to the income as was specified in the Waqfs deeds to be set apart or utilised for religious, pious or charitable purposes. The Waqfs Board could not direct the Mutawalliya to submit accounts in respect of the entire income from the properties. The learned single Judge was thus right in holding the notice to be not in accordance with law and quashing the same. The quashing will, however, not bar the Board from issuing a fresh notice in accordance with law.

6. Section 55 provides for removal of Mutawalli. Learned counsel for the appellants contended that because the Mutawalliya had wrongfully alienated the waqif property, conditions had arisen for taking action under Section 55 of the Waqfs Act. Section 55 (1) (iv) provides:

'The Board may, after affording him an opportunity of being heard, remove a mutawalli other than a Managing Committee from his office if he......wrongly destroys or alienates any waqf property.'

Learned counsel also urged that the case may come under Clause (vii) which provides for the removal of the Mutawalli on being guilty of misappropriation of property. The person aggrieved has also a right of reference to the Tribunal against an order of removal under subsection (2) of Section 55 of the Waqfs Act. As yet no order of removal has been passed. Learned counsel for the petitioner-respondent contended that the order contained in Annexure 2 to the writ petition tantamounted to a decision and a finding to the effect that the petitioner had wrongly alienated the waqfs' property. We are unable to hold that it is a final determination. Learned counsel for the appellant also contended that it was not the intention of Annexure 2. According to him also that was only a preliminary finding for coming to the conclusion that notice to show cause should be given to the Mutawalliya under Section 55 of the Act and subsequently a notice Annexure 3 had been given to the petitioner to show cause. As we have held that the Waqfs in dispute are Waqfs within the meaning of the Act, Section 55 will be applicable and if proceedings are started under that provision, no writ of prohibition can be issued. The petitioner has not yet suffered any injury. She has only been given notice to show cause which the Waqfs Board would legally give. As such the proceedings not being without jurisdiction cannot be quashed. Whether there are wrongful alienations of the waqf property or not has to be determined on evidence and it would be premature in these proceedings to arrive at any finding in this respect.

7. The other order, which is the subject-matter of the petition, is the order of suspension. The learned single Judge has held that there is no power under the Waqfs Act to suspend the Mutawalli. Learned counsel for the appellants has failed to show us any provision which may give authority to the Board to suspend a Mutawalli in contemplation of an enquiry under Section 55 or during the pendency of such enquiry It also cannot be said impliedly that there is power of suspension because there is no provision under the Act providing for the working of the waqf during the period of suspension of the Mutawalli. This also indicates that there is no power vested in the Waqfs Board to suspend a Mutawalli. Learned counsel for the appellants tried to justify the order by relying on Section 19 of the Act. Section 19 of the Act does not give any such power to the Waqfs Board. It contemplates control and superintendence and not the suspension of the Mutawalli. At the most, Section 19 can empower theWaqfs Board to take preventive measures for protecting the property, but it does not empower the Board to suspend the Mutawalli.

8. In the result, the appeal is partly allowed and the order quashing Annexure 1 to the writ petition is set aside; the order quashing Annexure 3 in its entirety is modified and is maintained only in so far as it quashes the suspension of the petitioner from Mutawalliship of the Waqfs, but is set aside in so far as it relates to the quashing of the notice to show cause issued under Section 55 of the Act : the quashing of Annexure 4 is maintained; Annexure 2 has become in-fructuous and the order quashing the same is also maintained. Costs shall be borne by the parties.


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